Unitary patent: Drafts and discussions


Aurélia Marie

It seems that 2015 will not be the year when we will see the implementation of the unitary patent regulation and the Unified Patent Court (UPC), as it appears to have been postponed until 2017.

This implementation depends most notably on the ratification of the UPC agreement by 13 EU member states, including France, Germany and the UK.

However, the number of ratifications to date is far from the total required. Indeed, to date there are only six ratifying states: Austria, Belgium, Denmark, France, Malta and Sweden. Furthermore, ratification by Germany and the UK in 2015 seems highly unlikely because of internal politics.

In the meantime, discussions continue on the official fee rates, the 17th and final version of the applicable rules of procedure for the UPC and the judicial training for the judges who will serve the court.

On the other hand, while its adoption was previously postponed to an unspecified date, EU trademark reform could be implemented in March following a final discussion between the European Parliament, Council and Commission. At present, however, it is not possible to know if the current version of the texts amending Regulation (EC) No. 207/2009 on the Community trademark, and Directive No. 2008/95/EC to approximate the laws of the member states regarding trade, will be the final versions, notably in relation to the issue of goods in transit from countries outside the EU.

Digital developments

Other draft European legislation is under discussion, such as a text on trade secrets (a draft directive, proposed by the European Parliament and Council, on the protection of know-how and undisclosed commercial information—trade secrets—against their unlawful acquisition, use and disclosure), and on personal data (draft regulations, proposed by the parliament and council, on the protection of individuals regarding the processing of personal data and on the free movement of such data).

"France has in fact decided to anticipate EU plans on the subject and provide protection to companies for their tangible and intangible assets."

These texts reflect developments in the digital age and are intended to allow harmonisation between member states on these sensitive issues. However, the timetable for their adoption is uncertain. Similarly, discussions are underway regarding a possible revision of Directive No. 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

In France, Law No. 2014-315 (passed on March 11, 2014) on strengthening the fight against counterfeiting is still pending an implementation decree regarding patent related customs seizures. Similarly, the implementation of protection for geographical indications for manufactured goods, which forms part of the so-called ‘Hamon Law’, remains suspended until the publication of a decree.

Enhanced protection of trade secrets should now be debated following the introduction of draft law No. 2139 in the National Assembly on July 16, 2014. France has in fact decided to anticipate EU plans on the subject and provide protection to companies for their tangible and intangible assets. This national legislation is likely to be adopted before its equivalent is passed at the European level.

At one stage certain provisions of this proposal were to be incorporated into the law on growth and activity, known as the ‘Macron Law’, which is currently pending before the National Assembly, but they were eventually withdrawn. It is hoped that the French text, once adopted, will not need modifications if the final EU provisions on the matter differ.

Finally, a draft law on copyright (draft law implementing various EU provisions in the field of literary and artistic property and cultural heritage) is also under consideration. It aims to transpose into French national law Directive No. 2011/77/EU, which amends Directive No. 2006/116/EC on the term of protection of copyright and certain neighbouring rights; Directive No. 2012/28/EU on certain permitted uses of orphan works; and Directive No. 2014/60/EU on the return of cultural objects unlawfully removed from the territory of a member state; and amends Regulation (EU) No. 1024/2012 (recast).  

Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: amarie@bdl-ip.com

UPC, trademark, trade secrets, Unified Patent Court